Considering Testamentary Capacity – Part 1

One of the unique challenges for Courts in dealing with matters of Estate Litigation is that Judges must try to understand the motivation and actions of the Deceased who cannot testify and give evidence for themselves. When a litigant is unhappy with the distribution of an estate, one tactic that they may consider is challenging whether the Deceased had the required “testamentary capacity” to make the will in question. This can arise more frequently in cases of elderly testators or testators who make new or substantially revised wills immediately before their death. This two part blog will discuss the definition of testamentary capacity and then consider the test applied by the Court.

Testamentary capacity is a thorny issue and the first important issue to consider if you believe that a challenge to testamentary capacity is warranted. In Bach Estate (Re), 2017 BCSC 548, Mr. Justice Kelleher summarized the law with respect to the meaning of the term “testamentary capacity” as follows:

[26] The meaning of testamentary capacity has not changed significantly since the often cited decision in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at 567. The meaning was recently put this way by Sigurdson J. in De Araujo v. Neto, 2001 BCSC 935 (CanLII) at para. 127, citing from Feeney’s Canadian Law of Wills, 4th Ed. (Toronto: Butterworths, 2000) at 2.5:

To use the time-honoured phrase, a person must be “of sound mind, memory and understanding” to be able to make a valid will. When a will is contested on the ground of mental incapacity, the propounder must prove that the testator understood what he or she was doing: that the testator understood the “nature and quality of the act”. The testator must be able to comprehend and recollect what property he or she possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and, finally, the nature of the claims of others who are being excluded.